2010 Trend Watch Update: Three Strikes: Truth and Consequences

At the beginning of this year EFF identified a dozen important trends in law, technology and business that we thought would play a significant role in shaping digital rights in 2010, with a promise to revisit our predictions at the end of the year. Now, as 2010 comes to a close, we're going through each of our predictions one by one to see how accurate we were in our trend-spotting. Today, we're looking back on Trend #10, Three Strikes: Truth and Consequences, where we predicted:

In countries across the globe, the entertainment industry has been pushing for laws requiring ISPs to terminate their users' connection at the whim of the entertainment industry. In 2009, they got their wish — in France and South Korea, at least. This year will see the spin battle over what is actually happening in those countries.

Expect media industry reports describing amazing local declines in filesharing, aimed at policymakers in other nations considering the same. And look out for local press reports from these three strikes ground zeroes, documenting the calamitous consequences of disconnections, the lack of financial return to working artists, and the ">political blowback for the politicians who championed these unjust laws.

Although IP rightsholders’ groups such as IFPI continue to push for Three Strikes laws across the world, fewer countries that have adopted these laws in 2010 than we had feared. So far, Three Strikes laws have only been adopted in South Korea and France, although a draft law is pending in New Zealand, and proposed in India. This year saw Ireland’s major ISP, Eircom, adopt a Three Strikes policy in a court-approved lawsuit settlement agreement with the recorded music industry. Meanwhile, the UK Parliament rejected the proposal to force ISPs to terminate subscribers upon repeat allegations of copyright infringement; the Digital Economy Act enacted in 2010 requires ISPs to forward notices of alleged copyright infringement to subscribers but puts the burden on IP rightsholders to bring targeted lawsuits against repeat infringers. Finally, following much criticism of previously leaked draft texts, all references to Three Strikes Internet disconnection obligations for ISPs were removed from the final version of the Anti-counterfeiting Trade Agreement finally released in December.

As we also expected, IP rightsholders and global policy-makers have realized that Three Strikes automatic disconnection laws and policies are a short-term measure, and are now focusing their efforts on Internet intermediary obligations to block webpages. Recognizing that Three Strikes policies are ineffective against the ways that many Internet users now obtain unauthorized content – through one-click file hosting sites and cyberlockers such as Rapidshare -- IP rightsholders have been pushing for laws requiring Internet intermediaries to block websites alleged to be engaged in copyright infringement. We saw this in 2010 with the US COICA Bill and the reserved powers in the UK Digital Economy Act. Expect to see more pressure on this front in 2011.